R v MW NON PUBLICATION ORDER

CATCHWORDS: CRIMINAL LAW - s 5D appeal against sentence - sexual intercourse without consent upon stepdaughter - attempt to choke - affected by drugs - concurrent sentences imposed - objective seriousness of an offence - standard non-parole periods - principles of Crown appeals - whether too much weight given to subjective circumstances - whether sentence manifestly inadequate

LEGISLATION CITED: Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999

Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 MD, BM, NA, JT [2005] NSWCCA 342; 156 A Crim R 372 Pearce v The Queen (1998) 194 CLR 610 CASES CITED: R v Gordon (1994) 71 A Crim R 459 R v Oloitoa [2007] NSWCCA 177 R v Witchard [2007] NSWCCA 167 R v XY (2007) NSWCCA 72

PARTIES: The Crown (Appl) MW (Resp)

COUNSEL: N Adams (Crown/Appl) P Stickland SC (Resp)

SOLICITORS: Director of Public Prosecutions (Crown/Appl) Legal Aid Commission of NSW (Resp)

IN THE COURT OF CRIMINAL APPEAL 2007/1435

McCLELLAN CJ at CL BARR J BERGIN J

Non publication order. The court has made the following orders: 1. That there be no publication of the name of the respondent or of any material that would identify him. 2. That the name of the victim and any material apt to identify the victim not be published. 1 McCLELLAN CJ at CL: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against sentences imposed upon the respondent in the District Court. The Director submits that the sentences are manifestly inadequate. 2 On 5 March 2007 the respondent pleaded guilty to the following charges:

(a) On 13 July 2005 at Tregear he had sexual intercourse with DA without her consent and knowing that she was not consenting in circumstances of aggravation, namely that immediately after the offence actual bodily harm was inflicted on her, contrary to the provisions of s 61J(1) of the Crimes Act 1900, the maximum penalty for which is imprisonment for 20 years, and the standard non-parole period is 10 years; and

(b) On 13 July 2005 at Tregear he attempted to choke DA with intent to commit an indictable offence, namely to have sexual intercourse with her without her consent, contrary to the provisions of s 37 of the Crimes Act 1900 the maximum penalty for which is imprisonment for 25 years. 3 The respondent further asked that the judge, when sentencing for the second offence (attempting to choke) take into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999, a further offence, namely that on 13 July 2005 at Mt Druitt he committed an act of indecency towards DA. 4 The respondent was sentenced in relation to each offence to concurrent terms of imprisonment for 8 years comprising a non-parole of 5 years and 6 months commencing on 8 August 2005 and expiring on 7 February 2011 and a balance of term of 2 years and 6 months commencing on 8 February 2011 and expiring on 7 August 2013.

The facts 5 The respondent is the stepfather of the victim. The victim's mother was pregnant with the victim when she started a relationship with the respondent. The victim was born on 19 May 1988 and was seventeen at the time of these offences. 6 The respondent and the victim's mother have five children of their relationship, the youngest of whom was a baby at the time of these offences. The relationship between the respondent and the victim's mother was volatile. Both used illegal drugs. The respondent told Dr Allnutt, a psychiatrist, that they regularly had fights about money and drugs and that his partner regularly "kicked him out of the house, but that he would return." One such argument occurred a matter of days before these offences during which the respondent was struck on the head by a clock. The victim called the police, as she had done on occasions in the past and the respondent left the family home. He was sleeping on the streets where he was ingesting large quantities of drugs, which was his usual habit. He told police that in the period leading up to these offences he ingested more than his usual quantity. 7 He told police that he was attending doctors to obtain prescriptions for Panadeine Forte. He told Dr Allnutt that he was taking up to 100 tablets per day. 8 On Wednesday, 13 July 2005 the victim and her mother took the baby to a friend's house so that the respondent could see him. They left the baby with the respondent and went elsewhere. When they returned the respondent was there with the baby. The victim and her mother started drinking Jim Beam. Thereafter the respondent lured the victim to a nearby reserve on the pretext of collecting stolen jewellery or gold. The respondent asked the victim why she had called the police at the time of the earlier domestic incident. Shortly thereafter the victim told the respondent that she was not going any further. The respondent then produced a tea towel and a roll of electrical tape and tried to force the tea towel into the victim's mouth. The victim tried to call triple 0 on her mobile but the respondent threw it away. The victim struggled with the respondent while he tried to gag her and she then grabbed the tape and threw it away. During the struggle the victim asked the respondent "why are you doing it?" and he replied "to teach your mum a lesson" and said something about payback for calling the cops. He also threatened to kill her. 9 While the victim was on the ground the respondent had his knees on either side of her legs, the respondent then put his finger into the victim's vagina. While this was happening the victim was crying and the respondent told her to shut up. Immediately after this, the victim yelled for help and the respondent punched her at least three times in the face. This constitutes the first charge. 10 While the respondent had his finger in the victim's vagina he took his penis out and started masturbating. This constitutes the matter on the Form 1. 11 The respondent then attempted to get on top of the victim and she put her hands over her vagina. The respondent then tried to put his penis into her vagina and she yelled for help. The respondent then grabbed her by the throat with both hands and started choking her, she could not breathe. She tried to kick him and punch him. The victim then lost consciousness. This constitutes the second charge. 12 When the victim woke up she was lying underneath a pile of sticks and small branches. She pulled herself out from underneath the pile, took her jumper off and tied it round her waist as she was naked from the waist down. She walked to a nearby house where she arrived at about 10.15pm. The residents of the house opened the door and the victim said "I think he raped me, he knocked me out." The police and ambulance were immediately called. The victim's face was badly swollen. She was taken to Nepean District Hospital where she was treated for severe soft tissue swelling to her face and scratches and bruises to her body. 13 The respondent returned to the family home after these offences and spoke to his partner. She noticed that he was sweating. He told her that he was going to get fuel and would be back in ten minutes and that he was also going to get some cannabis. He did not return to the house. The police arrived shortly thereafter and his partner contacted him. He refused to return home to speak to the police, stating "I'm going to keep running until they put a bullet in me." He later refused to go to the police station when contacted by police on his mobile. He went to a friend's house and told him that he had choked and punched "a bloke" and that he thought he had killed somebody and left them at the reserve. His friend refused to let the respondent stay. 14 The respondent was arrested on 8 August 2005 at Toronto near Newcastle. He told police that he had been staying on the streets and went to his parents' house for a couple of days. He said that he tried to kill himself a couple of times. He participated in an electronically recorded interview on 20 October 2005, during which he made a number of admissions although he also said that he did not recollect much of what was put to him. 15 He did tell police that he thought he had punched the victim. He told them that he remembered that he was "going to assault her, but I just couldn't do it, not, not do it." He remembered choking the victim and then told the police "then I just, sort of like come out of something, I don't know what it was." He denied planning the incident and told police he could not remember many of the facts, including the use of the tea towel, the tape, the threats to kill the victim and his family, pulling off the victim's clothing, putting his finger in her vagina, masturbating or piling sticks upon her. He denied having thoughts about committing the crimes before they occurred. He said "oh, just on the night I think something, something happened just on the night. I don't, I'm not sure, it's really vivid and I don't and it was just on the night, there was no plan to it."

The remarks of the sentencing judge 16 The sentencing judge found that the attack on the victim was "an horrific and brutal attack." Although there was no evidence of any long term physical consequences for the victim her Honour found there was a "significant psychological or psychiatric impact upon her as identified by her in her poignant statement." 17 Her Honour found that the respondent was at the time of sentence 38 years of age. He attended school to age 16 and had experienced no learning difficulties. He was the second eldest of four children. He had been disappointed in his parents. He had worked mainly in landscaping jobs and although he had not been fired, he had worked with a variety of employers. 18 The respondent left home at aged 12 or 13 and resided with a known drug user. His drug problems had increased although his parents had no idea of his addiction. When he was about 19 or 20 he commenced a relationship with the victim's mother. That relationship has now come to an end although he still has contact with his former partner when he telephones his children. 19 In relation to his drug use he told Dr Allnutt that his drugs of choice were initially amphetamines and alcohol commencing at about age 12. He said that at about age 25 he was prescribed Codeine for the first time for a back problem and became addicted. He was initially using about five 30 milligram tablets per day which increased until at the time of the offence he was using a hundred 30 milligram tablets per day or even more. At the age of 34 he began using cannabis daily. He also added Valium to his drug "cocktail" from time to time. 20 He told Dr Allnutt that for some time before the offence he would hear voices when on drugs. The voices would occur when he was either high, coming down or if he had not slept for a few nights. He also said that he had paranoid thoughts and felt that people around him wanted to do him harm. He could not remember whether he was hearing voices at the time of the offences although he did recall feeling paranoid at that time. 21 The sentencing judge found that although not a mitigating factor there was little doubt: "that the offender, at the time he committed these offences, was suffering from a very significant degree of drug intoxication and was experiencing at least some of the psychotic phenomena described by Dr Allnutt. I am also satisfied that his capacity to reason was very much affected and that he did not fully appreciate what he was doing. His severe drug intoxication is relevant to the objective, my assessment of the objective seriousness of these offences, as it is relevant to his state of mind. As I have said though, the fact that he was a drug addict does not provide any justification for the commission of these offences. It does provide some explanation." 22 Her Honour found that the respondent's behaviour since being taken into custody was satisfactory. He had completed courses relating to drug and alcohol abuse and had participated in individual counselling sessions with a psychologist. 23 The Crown submitted that her Honour should be mindful of a number of aggravating factors. The respondent was in a position of trust in respect of his victim (s 21A(2)(k)) and the offence was part of a planned criminal activity (s 21A(2)(n)). Her Honour accepted these aggravating factors although she found that the respondent's severe intoxication diminished his capacity to have planned the events. The Crown submitted that the respondent was motivated by a desire for revenge or retribution on his partner. In relation to this submission her Honour found "it is difficult, given the gross intoxication, to be satisfied that he cold-heartedly and clearly intended his actions to be in the nature of revenge and I do not propose to treat that as an aggravating factor." Her Honour also found that "the incidents involved a significant degree of violence and threats of violence which is also an aggravating matter." 24 In relation to matters in mitigation her Honour accepted that the respondent was remorseful and had good prospects of rehabilitation. Her Honour found that the respondent pleaded guilty at the first available opportunity which entitled him to a discount of 25%. Although her Honour acknowledged that it was possible that the respondent may experience greater hardship in custody than other offenders she did not find herself able to give the fact he will serve his sentence on protection very much weight. Her Honour also found that there were special circumstances in that "the offender needs considerable supervision on his release into the community." 25 After referring to these various matters her Honour said: "Taking all of those matters into account and coming to the view that the objective criminality of both offences was in the mid-range of seriousness and acknowledging that I must impose a sentence appropriate to the criminality of the offences. In my view both offences are of equal seriousness, although for different reasons and warrant the same sentence." 26 Her Honour then proceeded to impose the sentences to which I have referred. Her Honour provided for complete concurrency and said "as (the offences) were committed as part of a single episode of criminality and considering Pearce principles of totality the sentences should be served together." When expressing her conclusion her Honour made no reference to the fact that the 61J(2)(a) offence carried a maximum term of 20 years imprisonment whereas the s 37 offence carries a maximum term of 25 years. The s 61J offence also has a standard non-parole period of 10 years. Her Honour made no reference to the offence relating to the act of indecency. 27 After her Honour had passed sentence counsel reminded her of the standard non-parole period in relation to the s 61J offence and her Honour then said: "I'm sorry I did not, thank you Mr Crown, I did not refer to Way . The reasons for departing from the standard non-parole period which attached to the first count on the indictment that because this matter arose following a guilty plea, rather than a trial the standard non-parole period acts as a guide post or a reference point and although I found the objective criminality to be around mid-range, in my view because of the matters to which I have referred, including the subjective matters and the mitigating factors that a sentence of less than the standard non-parole period is appropriate." 28 In this later statement her Honour speaks of the objective criminality "to be around mid-range" whereas in her primary reasons she said that the objective criminality of both offences "was in the mid-range of seriousness."

Crown submissions on the appeal 29 The Crown submitted that the offences committed by the respondent were of great gravity. He lured his victim, who was his step-daughter and to whom he had a position of trust and authority, to a reserve, under a pretence, and taking with him a tea towel which he attempted to force into her mouth and a roll of electrical tape, threatened to kill her and while she was protesting and crying had sexual intercourse with her. He grabbed her by the throat and choked her until she lost consciousness and then covered her body and left her semi-naked in the reserve. The Crown submitted that the respondent's statement that he was committing the offence in order to teach the victim's mother a lesson and as "pay back for calling the cops" indicated that he was motivated by an irrational desire for revenge and retribution. Furthermore, the offences were planned. It was submitted that in all the circumstances a significantly greater penalty than that which her Honour imposed was required. 30 It was submitted that her Honour had given too much weight to the respondent's subjective circumstances and failed to impose sentences that properly reflected the objective seriousness of the offences. It was further submitted that her Honour had failed to impose an additional penalty in relation to the matter to be taken into account under the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999. 31 In relation to the s 61J(1) offence it was submitted that her Honour had found that the offence fell within the mid-range of objective seriousness and that having regard to the fact of the respondent's motive for the offence, that involved a significant degree of violence with very serious consequences for the victim her Honour should have found that it was an offence above the middle of the range of objective seriousness for such offences. 32 It was further submitted that by imposing wholly concurrent sentences for both offences her Honour failed to mark out the seriousness of each offence and failed to sentence in accordance with the principles in Pearce v The Queen (1998) 194 CLR 610.

The respondent's submissions 33 The respondent submitted that the sentencing judge by referring to the standard non-parole period and making a finding that the objective criminality was "around the mid-range" adequately considered the standard non-parole period in relation to the first charge. It was submitted that the Crown submission that the respondent was motivated by revenge or retribution was expressly rejected by her Honour. Her Honour determined that the respondent's gross intoxication precluded a finding that a motive of revenge should be treated as an aggravating factor. It was submitted that it was open to her Honour to depart from the standard non-parole period due to the early plea of guilty. It was further submitted that her Honour was entitled to reach this conclusion having regard to the significant intoxication of the respondent which affected his capacity to reason and diminished his self control. 34 The respondent accepted that the offences involved a degree of planning but submitted that it was open to her Honour to find that the respondent was not aware of the extreme violence that could result from the ingestion of the cocktail of drugs. The respondent emphasised that although he had a criminal history it did not include any convictions for sexual assault and did not contain an extensive history of violence. 35 The respondent submitted that the respondent's drug addiction was a significant factor mitigating the seriousness of the offences. It was submitted that it was consistent with the decision of this Court in R v XY (2007) NSWCCA 72 that her Honour should find that the respondent's intoxication was, to some extent, a mitigating circumstance.

Consideration 36 The principles which this Court will apply in relation to a Crown appeal against sentence are well known. They are referred in MD, BM, NA, JT, [2005] NSWCCA 342; 156 A Crim R 372 at [18]: "This Court has, on many occasions, taken care to emphasise the principles governing appeals by the Crown. They were clearly defined by Wood CJ at CL in R v Wall [2002] NSWCCA 42 where his Honour said: '… it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence: (a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 449, applies to crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion as to the appropriate sentence, for that of a sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error or latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; Wong & Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109. (b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere; R v Baker [2001] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons" per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at para 61 and 62, and Wong & Leung v The Queen at para 109. (d) The Court has a lively discretion to refuse to intervene even if error has been shown and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong & Leung v The Queen at para 110. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less from that which should have been imposed by the sentencing court: R v Holder & Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen para 62." Wood CJ at CL referred to R v Baker [2000] NSWCCA 85 where Spigelman CJ said: 'The authorities make it clear that Crown appeals should be rare. It may be that the present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified and the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred.' 37 Notwithstanding the care which must be taken before this Court will intervene in response to a Crown appeal, in the present case I am satisfied that there are a number of significant problems with the sentences her Honour imposed which require the intervention of this Court and the resentencing of the respondent.

The s 61J offence and the standard non-parole period 38 As I have indicated her Honour initially made the finding that both offences were in the mid range of seriousness although she later said that the objective criminality of the s 61J(2)(a) offence was "around mid range." The need for a judge to express a finding in relation to the seriousness of the offence was emphasised by this Court in R v Witchard [2007] NSWCCA 167 at [32] and R v Oloitoa [2007] NSWCCA 177 at [28], [41]. Not only must a sentencing judge be careful in the making of that finding it is essential that the remarks on sentence clearly state the reasons for departing from the standard non-parole period before sentence is pronounced in the particular case. When, as in the present case, they are expressed as after thoughts the impression that they were not carefully identified before the appropriate sentence was determined may prove irresistible. 39 The circumstances of the first charge were of considerable gravity. As the Crown emphasised the respondent lured his step-daughter, in relation to whom he had a position of trust and authority to a reserve. He made preparations for the purpose of committing a sexual assault and in so doing inflicted violence upon her. To my mind, a finding that the offence fell above the mid-range of objective seriousness could not have been successfully challenged. However, I am not persuaded that her Honour's finding that the offence fell within the mid-range of objective seriousness was not open. 40 However, apart from the fact of the respondent's guilty plea I can see no justification in a further reduction in the non-parole period by reason of circumstances personal to the respondent. It may be accepted that he has encountered serious problems with drug and alcohol and that he was affected by drugs at the time of the offence. However, the respondent has a criminal history which, although it does not involve offences of a sexual nature, does include two offences involving violence. He has served a custodial sentence for a robbery committed a number of years ago. More recently in 2003 he was sentenced to 6 months imprisonment for inflicting actual bodily harm upon his partner, although the sentence was suspended. 41 In these circumstances, to my mind, the fact that the respondent was affected by drugs at the time of the offence could not justify mitigation of the appropriate sentence. He had taken drugs on many occasions and was aware of their potential impact upon him, including apparent psychotic episodes. There is no suggestion that in committing the subject offence he was affected so that his actions should be seen as "a sudden departure from his previous law abiding conduct." (R v Gordon (1994) 71 A Crim R 459) 42 To my mind, even bearing in mind the respondent's guilty plea, the sentence of a non-parole period of 5½ years with an overall term of 8 years was excessively lenient.

Section 37 offence 43 My observations in relation to the relevance of the respondent's drug taking, both generally and at the time of the offence are also relevant to the second charge. The s 37 offence carries a maximum penalty of 25 years. Although her Honour refers to the maximum she nowhere considers what, if any, consequence it may have for the appropriate penalty in relation to this particular offence. There will be varying degrees of criminality in an offence contrary to s 37. In the present case the choking inflicted upon the victim was of such severity that she was rendered unconscious, the respondent believing that she had died. As a consequence of the harm inflicted the victim has suffered significant psychological injury. It must be remembered that the offence itself is defined as an "attempt to choke." When that attempt results in the victim becoming unconscious the offence is one of considerable gravity. The maximum penalty provided by the statute is 25 years. To my mind the offence justified a sentence of greater severity than the sentence for the s 61J(2)(a) offence. Furthermore, it was entirely inappropriate to provide concurrent sentences for both offences. The initial physical assault and act of intercourse was very serious. However, the subsequent attempted choking of the victim which rendered her unconscious was of a different character and required an identifiable penalty.

Section 61N(2) offence 44 This offence carries a maximum penalty of 18 months imprisonment. In accordance with the principles in Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 the sentencing judge was obliged to impose an additional penalty when sentencing for the s 37 offence. The failure to do so has contributed to the inadequacy of the sentence requiring the intervention of this Court.

The appropriate sentences 45 It is unnecessary for me to repeat the objective circumstances of each offence and subjective matters relevant to the respondent. As I have indicated I would not disturb her Honour's finding that the offence contrary to s 61J(2)(a) was an offence in the mid-range of seriousness. The respondent is entitled to a discount of 25% for his early plea. Her Honour found that the respondent was remorseful and had good prospects of rehabilitation. Her Honour also found special circumstances and it has not been suggested that this finding was in error. The sentences which I propose fall, as they must with respect to a Crown appeal at the bottom of the available range. If sentenced at first instance they would have been significantly greater. 46 In my view the following orders should be made:

1. Uphold the Crown appeal and quash the sentences imposed on the respondent on 23 March 2007 in the District Court. 2. For count 1 on the indictment the offence of aggravated sexual assault without consent the respondent is sentenced to a fixed term of 6 years commencing on 8 August 2005 and expiring on 7 August 2011. 3. For count 2 on the indictment (and taking into account the matter on the Form 1) the respondent is sentenced to a non-parole period of 8 years commencing on 8 August 2006 and expiring on 7 August 2014 with a further term of 3 years commencing on 8 August 2014 and expiring on 7 August 2017. 4. The overall sentence is a non-parole period of 9 years with a total term of 12 years. 47 BARR J: I agree with McClellan CJ at CL. 48 BERGIN J: I agree with McClellan CJ at CL. **********

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